EFF to Weigh in on First RIAA Downloading Trial Appeal

The Electronic Frontier Foundation, which is litigating the government’s secret wiretap program, said Monday it will lend a legal hand to Jammie Thomas, the nation’s first pirate to lose a federal jury trial in a case brought by the Recording Industry Association of America.

Thomas and her attorney, Brian Toder, said Monday they would appeal the $222,000 verdict a Duluth, Minnesota federal jury awarded last week to the RIAA after finding Thomas purloined 24 copyrighted recordings.

Fred von Lohmann, an EFF attorney, tells THREAT LEVEL that the San Francisco-based advocacy group will file a friend-of-the-court brief with the 8th U.S. Circuit Court of Appeals. The brief might argue two points, surrounding Jury Instruction No. 15, which says: "The act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from he copyright owners, violates the copyright owners’ exclusive right of distribution, regardless of whether actual distribution has been shown."

One of the possible arguments: Electronic transmission of music files over the internet cannot be distribution as defined by the Copyright Act.

"Look into the Copyright Act it narrowly defines distribution as distribution of a phonorecord or a copy. The definition says it has to be a physical object," von Lohmann said.

The most obvious argument EFF is likely to make is that the industry should prove that the music Thomas was sharing was actually copied by others, von Lohmann said.

"If I have a file in a share folder and nobody downloads from me, then how am I infringing?" he asked.

Jurors were not required to find that somebody else downloaded the 24 songs at issue in the Thomas case.

Von Lohmann said the defendant’s attorney, Toder, asked the group to get involved.

"Brian (Toder) asked if we would go amicus, and I said, ‘yes,’ " von Lohmann said.

A so-called amicus, or friend-of-the-court brief, gives interested parties who are not part of a case a forum to tell a court their position.

The EFF is battling the Bush administration and AT&T in San Francsico federal court, alleging the telecom has supplied the National Security Agency with the bulk of its customers’ communications.